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Free Speech

Attempt to Block Comment About Critical Race Theory at State Bd. of Ed. Meeting Yields $89K Attorney Fee Award


From Regenold v. Ohio State Bd. of Ed., decided Friday by Judge James Graham (S.D. Ohio.):

Plaintiff Daniel P. Regenold brought this lawsuit over a modest but important matter. He had requested to speak for no more than five minutes at a public meeting of the Ohio State Board of Education., but the Board denied his request. The Board said that it had already closed the book on the topic he wished to address – critical race theory in Ohio education. Board President Laura Kohler notified Regenold that the Board had addressed the topic at prior meetings and passed a final resolution on the matter at least nine months earlier.

Regenold filed suit …, seeking a preliminary injunction and asserting that the Board violated his rights under the First Amendment …. He alleged that the Board's decision to deny his request to speak was an overbroad, content-based restriction. Pointing to the language of the Board's applicable policy on conducting public meetings, Regenold argued that critical race theory remained an "issue of general interest" for which the Board's policy promised that the public would always have the right to speak.

Regenold's request for injunctive relief became moot about six months later when the Board allowed him and others to speak on critical race theory at public meetings. Later, defendants made an offer of judgment under Federal Rule of Civil Procedure 68, which Regenold accepted. The Court entered Judgment for plaintiff in the amount of $1,000….

Defendants concede that plaintiff is a prevailing party who is entitled to an award of attorneys' fees and costs. Judgment was entered in plaintiff's favor on his § 1983 claim, which entitles him to an award under 42 U.S.C. § 1988(b). Defendants' offer of judgment included "costs and attorneys' fees to be determined by the Court."

Defendants also do not contest the amount of costs. Plaintiff seeks costs of $2,033.27, which include the filing fee and transcript fees.

But defendants did argue, among other things, "that plaintiff should not be able to recover attorneys' fees for the [37.0] hours expended on plaintiff's motion for a preliminary injunction, which was unsuccessful in defendants' view." The court disagreed:

The motion for a preliminary injunction sought an order requiring defendants to allow plaintiff to speak for up to five minutes at a public meeting of the State Board of Education…. The Court disagrees with defendants' characterization of the motion as "unsuccessful." The motion raised significant First Amendment issues and was supported by a substantial body of case law. Plaintiff brought the motion in a thoughtful fashion, designed to vindicate his right to free speech in a public forum. Though the Court did not need to rule upon the motion, it may well have granted the motion, and ultimately plaintiff received precisely the relief he sought.

The Court also disagrees with defendants' statement that the action of "third parties" is what achieved relief for plaintiff. By "third parties," defendants seem to be referring to certain Board members who were not named as individual defendants in the complaint and who, after the lawsuit and motion were filed, voted in favor of allowing plaintiff and others to speak on critical race theory at the Board's public meetings. However, the Board itself was named as a defendant, and it was an action of the Board (through its voting members) which provided the relief plaintiff requested. See State Bd. Of Educ. Sept. 21, 2021 meeting, available at at 1:12:35 to 1:15:07 (going into executive session for "the purpose of conferring with legal counsel about matters that are the subject of pending or imminent court action").

Defendants argue that the Court cannot, under binding case law, treat plaintiff's motion for a preliminary injunction as the catalyst for the Board's vote to allow plaintiff to speak. Defendants cite Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Hum. Resources (2001). In Buckhannon, the Supreme Court held that a "catalyst theory" cannot be used to establish that a party is the prevailing party for purposes of being entitled to a fee award under federal civil rights statutes. It takes more than the filing of an action and the defendant making concessions in order for a civil rights plaintiff to be the prevailing party. The Supreme Court required that the trial court must create an "alteration in the legal relationship of the parties" in order for the plaintiff to be a prevailing party. One way a trial court can accomplish that end is to enter judgment in plaintiff's favor, no matter how small the amount of damages.

Defendants' argument is of no avail here. Plaintiff is not asserting a catalyst theory to establish that he is the prevailing party. Indeed, the judgment entry in his favor, which awarded him $1,000 in damages, suffices under Buckhannon to establish plaintiff as the prevailing party.

Plaintiff instead is using a catalyst-type argument to support the reasonableness of expending hours in moving for a preliminary injunction. The Court agrees that it was reasonable for plaintiff to expend legal resources on pursuing preliminary injunctive relief, considering that an opportunity to speak was the primary relief he was seeking and that the Board had formally denied him of that opportunity before he filed suit. See Clark v. Sims (D. Md. 1995) ("[O]nce a party has been otherwise found to be a prevailing party, [a] catalyst theory remains available for consideration as a factor in arriving at the actual amount of the fee award, if any."); Lucas v. Guyton (D.S.C. 1995) ("agree[ing] entirely" with the analysis in Clark)….

Accordingly, … [p]laintiff is awarded $88,996.00 in attorneys' fee and $2,033.27 in costs, for a total award of $91,029.27.

Plaintiff is represented by Curt Hartman and Christopher Finney.